IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

Nancy S. Woodard, :

Plaintiff, :

v. : Case No. 2:11-cv-1055

 : JUDGE GREGORY L. FROST

Commissioner of Social Security, Magistrate Judge Kemp

Defendant. : 

 REPORT AND RECOMMENDATION

 I. Introduction

 Plaintiff, Nancy S. Woodard, filed this action seeking

review of a decision of the Commissioner of Social Security

denying her applications for disability insurance benefits and

supplemental security income. Those applications were filed on

June 16, 2003, and alleged that plaintiff became disabled on

January 3, 2003. 

After initial administrative denials of her applications,

plaintiff was given a hearing before an Administrative Law Judge

on July 10, 2006. In a decision dated June 18, 2007, the ALJ

denied benefits. Subsequently, the Appeals Council remanded the

case for further evaluation of the medical evidence. A second

administrative hearing was held on July 31, 2010, which also

resulted in a decision denying benefits. That decision became

the final decision of the Commissioner when the Appeals Council

denied review on September 22, 2011.

After plaintiff filed this case, the Commissioner filed the

administrative record on March 27, 2012. Plaintiff filed her

statement of specific errors on April 13, 2012. The Commissioner

filed a response on July 16, 2012. No reply brief has been

filed, and the case is now ready to decide.

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II. Plaintiff’s Testimony at the Administrative Hearing

 Plaintiff, who was 45 years old at the time of the

administrative hearing and who has a high school education,

testified as follows. Her testimony appears at pages 996-1024 of

the administrative record.

 Plaintiff last worked on January 3, 2003. At that time, she

was working as an assistant manager at a McDonald’s restaurant. 

She began having pain in her right knee and took a two-month

leave of absence to see if it would improve, but it did not. She

had the knee replaced, but still suffers from pain and

inflamation. In addition, she developed problems with her left

knee. Both knees have been treated with cortisone shots. She

rides a scooter, prescribed by her doctor, because walking is

difficult, and walks with a cane.

Plaintiff also testified to back problems. She has

degenerative disease in her lower back. At the time of the

hearing, she was not getting any treatment for her back due to

lack of funds. She also described nerve damage in her left wrist

and said she wore a wrist brace all the time, even while

sleeping. She suffers from diabetes as well, but at the time of

the hearing it was fairly well controlled with insulin and other

medications. Also, she has shoulder problems which prevent her

from working overhead with her left arm. Her high blood pressure

was under control. She was attempting to lose 200 pounds. She

did not testify to any psychological problems.

For knee pain, plaintiff took pain medications. Percocet,

in particular, caused drowsiness, but she took it on average

about twice a week. Her most comfortable position was sitting

with her feet up. Plaintiff testified that her back was getting

worse, as was her left knee. She was able to walk half a block,

using a cane, and could stand for five to ten minutes. Back pain

was the most significant limiting factor for these activities. 

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She could sit for half an hour at a time and could resume sitting

if she got up and moved around for a few minutes. She could lift

up to five pounds and could climb only a few steps. 

Plaintiff did not believe she could do any of her past work

due to her inability to bend, lift and stand as required. If she

had a sedentary job, her ankles would swell. She does not do

household chores but does shop for groceries and occasionally

visits friends or goes to movies. She had been participating in

pool therapy for about five months. She needed assistance tying

shoes or showering. In a normal day she would lie down for an

hour or more. She could attend some school activities for her

children, and during the day she read, listened to music, and

used a computer. Several days a week, her pain level would make

it impossible for her to go to work.

III. The Medical Records

The medical records in this case are found beginning on page

144 of the administrative record. The pertinent records can be

summarized as follows. This summary will focus on the treatment

records from Dr. Franklin and nurse practitioner Ms. Rutan, as

well as consultative examiner Dr. Smith, because that evidence is

also the key to evaluating plaintiff’s first statement of error.

Dr. Franklin began treating plaintiff as early as 2000, when

he saw her for de Quervain’s stenosing tensynovitis of the

extensor tendons of the right wrist and possible carpal tunnel

syndrome of the left wrist. The former condition was treated

surgically and plaintiff continued to work for several years

afterward.

Next, in 2002, Dr. Franklin started treating plaintiff for

her right knee problems. She had arthroscopic surgery in July of

that year and, again, went back to work afterwards. Another such

procedure was performed early in 2003 after plaintiff continued

to report pain and instability in the knee. She never returned

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to work after that surgery. The records show that during the

next several months, she continued to seek treatment from either

the emergency room or from Dr. Franklin for continued problems

with her knee, and that she also had surgery on her left wrist.

X-rays taken toward the end of the year showed arthritis in the

knee, and she had begun wearing a knee brace.

Dr. Franklin wrote a lengthy report on September 14, 2004,

detailing the history of his treatment of plaintiff’s various

conditions. First, he noted that her left wrist problems

prevented her from using her left hand for repetitive motions. 

He had not been treating her back problem but thought it would

affect her sitting and standing. He said her right knee was the

most incapacitating factor, and since he viewed her as too young

for total knee replacement, he thought those problems would

disable her from working competitively in a fast-paced

environment. (Tr. 491-94). He also completed a form indicating

that she could sit for six hours in a work day and stand for one

hour, but needed to get up and move around every thirty minutes. 

At about the same time, Ms. Rutan completed a questionnaire about

plaintiff’s diabetes in which she stated that plaintiff could

only sit or stand for one hour each during a work day. (Tr. 512-

16). Two years later, Dr. Franklin wrote another letter

confirming his conclusions, indicating that plaintiff had gotten

somewhat worse, and that with her knee problems, she would either

not be able to work 40 hours per week or “perform[] any of the

work duties she was capable of doing prior to initiation of her

disability.” (Tr. 623-24). Ms. Rutan also supplemented her

report in 2006, stating that her practice group saw plaintiff

four to five times per year and that plaintiff was disabled due

to limitations from her diabetes and joint problems. (Tr. 687).

Dr. Smith performed a consultative physical examination on

April 21, 2006. At that time, plaintiff’s chief complaint was

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pain in her right knee, left wrist, and low back. She was using

crutches and taking Vicodin and Percocet to control the pain. 

She could climb stairs but with difficulty and said she could not

kneel, squat, stoop or crawl. She weighed 295 pounds. Her left

hand pinch and grasp were abnormal as was the range of motion of

her right knee. Dr. Smith diagnosed osteoarthritis of the right

knee as well as other conditions and noted that she was dependent

on a brace for the right knee and the left wrist. He thought she

was impaired with respect to walking, lifting, bending, kneeling,

carrying, and handling objects in her left hand, but her ability

to sit was not impaired. (Tr. 595-97). He also completed a form

on which he indicated she could walk for four hours in a day, but

not more than 30 minutes at a time. (Tr. 602). Dr. Smith did a

follow-up evaluation on November 2, 2009. At that time,

plaintiff had real difficulties with her left wrist and hand

including continuous pain and intermittent swelling. She was not

using a cane at that time but would use a scooter when she was

out for longer periods. She did dusting and cooking at home but

would sit while cooking. Her right knee pain was better since

she had her knee replaced. She walked with a slight limp. He

completed a form indicating she could sit, stand and walk for a

total of seven hours in a work day and could lift up to ten

pounds, (Tr. 934-47).

On December 4, 2007, plaintiff was evaluated by Dr.

Lombardi, who recommended total right knee replacement. At that

time, her level of activity was described as “semi-sedentary.” 

(Tr. 784). Knee replacement surgery was performed by Dr.

Franklin on December 20, 2007. Within a month, plaintiff had

made good gains in strength and functional ability. She made

slow but steady progress over the course of the next number of

months, with some setbacks. Her primary complaints over that

time frame related to her hands and wrists more than the knee. 

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Treatment notes throughout 2009 are similar, and by 2010 Dr.

Franklin stated that plaintiff’s primary problems were her left

knee and left wrist, although he also said that “her function

remains significantly impaired as previously documented.” (Tr.

953).

 IV. The Vocational Testimony

A vocational expert, Ms. Ewers, also testified at the

administrative hearing. Her testimony begins at page 1024 of the

record. She characterized plaintiff’s past work as a fast food

manager as light and semiskilled, and as a fast food cook as

medium and semiskilled. 

Ms. Ewers was asked questions about a hypothetical

individual of plaintiff’s age who had plaintiff’s education level

and work history, and who could do light work with no climbing of

ropes, ladders or scaffolds and occasional climbing of stairs,

balancing, stooping, kneeling and crawling, with no work on

uneven surfaces and no exposure to hazards or extremes of

temperature. She testified that a person with those

restrictions could do various light jobs such as copy machine

operator, electronics worker, rental clerk, and mail clerk. 

Additional jobs would exist at the sedentary level. The number

of these jobs would be slightly reduced if the person could stand

or walk for only four hours in the work day, and 15,000 light

jobs and 4,000 sedentary jobs would still remain if the person

also could not do more than occasional fine manipulation with the

non-dominant hand. A ten-pound lifting restriction would further

reduce the number of light jobs, but not the sedentary ones. 

Someone with a cane could perform those remaining jobs. 

Plaintiff’s job skills would transfer to a number of light and

sedentary positions. 

In response to questions from plaintiff’s counsel, Ms. Ewers

testified that a person who kept their feet elevated for five

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hours a day could not work. The same would be true for someone

off task for up to 25% of the day due to pain or side effects of

medication. Also, someone who needed to lie down for two hours

during the work day or who would miss three or four days per

month for medical reasons would not be employable. 

V. The Administrative Law Judge’s Decision

The Administrative Law Judge’s decision appears at pages 23

through 36 of the administrative record. The important findings

in that decision are as follows.

The Administrative Law Judge found, first, that plaintiff

met the insured requirements for disability benefits through

March 31, 2008. Next, plaintiff had not engaged in substantial

gainful activity from her alleged onset date of January 3, 2003,

through the date of the decision. As far as plaintiff’s

impairments are concerned, the ALJ found that plaintiff had

severe impairments including bilateral de Quervain’s

tenosynovitis with residuals of surgery and chronic condition in

the left, non-dominant hand; internal derangement in the right

knee with mild arthritis initially progressing to severe in the

later record and total knee replacement; moderate arthritis in

the left knee per MRI in December 2007; vertebrogenic disorder of

the lumbar spine; and obesity. The ALJ also found that these

impairments did not, at any time, meet or equal the requirements

of any section of the Listing of Impairments (20 C.F.R. Part 404,

Subpart P, Appendix 1).

Moving to the next step of the sequential evaluation

process, the ALJ found that plaintiff had the residual functional

capacity to lift up to ten pounds, to stand or walk up to four

hours in an eight-hour work day, that she could not climb ropes,

ladders or scaffolds, that she could not push or pull more than

ten pounds on the left, that she could only occasionally climb

stairs, balance, stoop, kneel, crouch, or crawl, that she could

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only occasionally handle or finger on the left, that she could

not work on uneven surfaces, that she could not be exposed to

hazards or cold extremes, that she could not be more than

occasionally exposed to heat extremes, humidity, wetness,

irritants, or vibrations, and that she could not perform jobs

that did not permit the use of a cane or motorized scooter to

ambulate. The ALJ described this capacity as a “reduced range of

sedentary work.” (Tr. 30). Adopting the vocational expert’s

testimony, the ALJ found that plaintiff could not do any of her

past work but could perform unskilled sedentary jobs such as

assembly patcher, weight tester, surveillance system monitor, and

charge account clerk. Because the testimony showed that those

jobs exist in significant numbers in the regional and national

economies, the ALJ concluded that plaintiff was not entitled to

benefits.

VI. Plaintiff’s Statement of Specific Errors

 In her statement of specific errors, plaintiff raises two

issues. She argues (1) that the ALJ did not properly weigh the

medical evidence, and particularly the opinions expressed by Dr.

Franklin and nurse practitioner Ms. Rutan; and (2) that the ALJ

not properly assess her credibility. The Court generally reviews

the administrative decision of a Social Security ALJ under this

legal standard:

Standard of Review. Under the provisions of 42 U.S.C.

Section 405(g), "[t]he findings of the Secretary [now the

Commissioner] as to any fact, if supported by substantial

evidence, shall be conclusive. . . ." Substantial evidence is

"'such relevant evidence as a reasonable mind might accept as

adequate to support a conclusion'" Richardson v. Perales, 402

U.S. 389, 401 (1971) (quoting Consolidated Edison Company v.

NLRB, 305 U.S. 197, 229 (1938)). It is "'more than a mere

scintilla.'" Id. LeMaster v. Weinberger, 533 F.2d 337, 339 (6th

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Cir. 1976). The Commissioner's findings of fact must be based

upon the record as a whole. Harris v. Heckler, 756 F.2d 431, 435

(6th Cir. 1985); Houston v. Secretary, 736 F.2d 365, 366 (6th

Cir. 1984); Fraley v. Secretary, 733 F.2d 437, 439-440 (6th Cir.

1984). In determining whether the Commissioner's decision is

supported by substantial evidence, the Court must "'take into

account whatever in the record fairly detracts from its weight.'" 

Beavers v. Secretary of Health, Education and Welfare, 577 F.2d

383, 387 (6th Cir. 1978) (quoting Universal Camera Corp. v. NLRB,

340 U.S. 474, 488 (1951)); Wages v. Secretary of Health and Human

Services, 755 F.2d 495, 497 (6th Cir. 1985). Even if this Court

would reach contrary conclusions of fact, the Commissioner's

decision must be affirmed so long as that determination is

supported by substantial evidence. Kinsella v. Schweiker, 708

F.2d 1058, 1059 (6th Cir. 1983).

As to plaintiff’s first statement of error, it has long been

the law in social security disability cases that a treating

physician's opinion is entitled to weight substantially greater

than that of a nonexamining medical advisor or a physician who

saw plaintiff only once. 20 C.F.R. §404.1527(d); see also

Lashley v. Secretary of H.H.S., 708 F.2d 1048, 1054 (6th Cir.

1983); Estes v. Harris, 512 F.Supp. 1106, 1113 (S.D. Ohio 1981). 

However, in evaluating a treating physician’s opinion, the

Commissioner may consider the extent to which that physician’s

own objective findings support or contradict that opinion. Moon

v. Sullivan, 923 F.2d 1175 (6th Cir. 1990); Loy v. Secretary of

HHS, 901 F.2d 1306 (6th Cir. 1990). The Commissioner may also

evaluate other objective medical evidence, including the results

of tests or examinations performed by non-treating medical

sources, and may consider the claimant’s activities of daily

living. Cutlip v. Secretary of HHS, 25 F.3d 284 (6th Cir. 1994). 

No matter how the issue of the weight to be given to a treating

physician’s opinion is finally resolved, the ALJ is required to

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provide a reasoned explanation so that both the claimant and a

reviewing Court can determine why the opinion was rejected (if it

was) and whether the ALJ considered only appropriate factors in

making that decision. Wilson v. Comm’r of Social Security, 378

F.3d 541, 544 (6th Cir. 2004).

Here, the ALJ first discussed the various reports of

disability authored by Ms. Rutan. He gave them no weight, noting

that plaintiff was seen by Ms. Rutan primarily in connection with

her diabetes and not for orthopedic issues, and that there was no

evidence that diabetes was even a severe impairment. Further,

the ALJ concluded that nothing in the treatment records from the

practice group which Ms. Rutan worked for showed any objective

basis for the conclusion that plaintiff could not perform even

sedentary work. 

Next, the ALJ reviewed Dr. Franklin’s reports. The starting

point of that analysis was an incorporation of the rationale of

the prior administrative decision which gave less than

controlling weight to Dr. Franklin’s opinion. That decision,

found in the record at Tr. 716-31, found that Dr. Franklin’s

various opinions were “neither well-supported by medically

acceptable clinical and laboratory diagnostic techniques nor 

consistent with other substantial evidence in the case record.” 

It also found that at least part of his opinion was based on

vocational factors. The decision identified the reports of the

state agency reviewers and the testimony of a medical expert, Dr.

Hutson, at the first administrative hearing as the specific

evidence in the record which contradicted Dr. Franklin’s

opinions. (Tr. 727-28).

Lastly, the ALJ commented on the restriction of seven hours

of sitting, standing and walking during a work day, noting that

such a restriction seemed “a bit arbitrary” and no reason was

given why plaintiff could do those activities for seven hours,

but not eight. He also noted that plaintiff’s right knee had

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improved following surgery and that she was always able to walk,

and that even with a restriction based on use of a cane she could

still do a number of sedentary jobs. The ALJ also rejected Dr.

Smith’s seven-hour restriction, noting that it did not comport

with the record as a whole and was not supported by his own

report. Finally, he noted the seeming inconsistency between

plaintiff’s ability to do a variety of daily activities and the

restrictions placed on her by Dr. Franklin.

Plaintiff, in her statement of errors, describes the ALJ’s

decision-making process as “fatally flawed.” With respect to Dr.

Franklin’s opinions, she contends that the ALJ did not take into

account her entire testimony about daily activities, which

included not only the things the ALJ found she could do -

attending pool therapy, grocery shopping, visiting, reading,

infrequently going on vacation, assisting her children with

homework, attending their school activities, and doing some minor

household chores - but also things she could not do, such as most

of the housework or cooking, being unable to shop without using a

scooter, or needing help with showering and tying her shoes. She

analogizes this case to Rogers v. Comm’r of Social Security, 486

F.3d 234 (6th Cir. 2007), a case in which the Court of Appeals

criticized the ALJ’s decision because the ALJ had improperly

compared “somewhat minimal daily functions” to “typical work

activities.” Id. at 248. Finally, she argues that the ALJ

failed to consider the other factors set forth in 20 C.F.R.

§404.1527 when evaluating Dr. Franklin’s opinions.

Plaintiff does not argue directly that the ALJ failed to

articulate his reasons for discounting Dr. Franklin’s opinions to

some extent, and the Court finds that the ALJ gave an explanation

which is sufficiently detailed to satisfy the “articulation”

requirement set forth in §404.1527(d) and to be reviewable. 

Thus, the question becomes whether a reasonable person could have

found, based on this record, that Dr. Franklin’s opinions were

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not entirely supported by objective testing, were not consistent

with other portions of the record, and were contradicted to some

extent by plaintiff’s own testimony about her activities of daily

living.

The record does not appear to contain the transcript of the

first administrative hearing, so the Court cannot review the

testimony of Dr. Hutson for consistency with Dr. Franklin’s

views. It is true that Dr. Smith’s first report indicates fewer

restrictions that Dr. Franklin would have imposed, although his

second report reflects the inability to perform work-type

activities (i.e. sitting, standing and walking) for more than

seven hours in a work day. Nevertheless, it is a fair reading of

Dr. Franklin’s reports that he was taking plaintiff’s fast-food

manager’s job into account when stating that she could no longer

engage in competitive work; much of the language in his reports

deals with the inability to do the demands of that type of work

or to engage in strenuous labor. Those reports, other than in

conclusory fashion, do not directly address the question of

whether plaintiff could do a limited range of sedentary work

where she could use a cane, did not have to do any significant

lifting, use her left hand more than occasionally, and could get

up and move around periodically. It is also true that the

objective evidence is hard to reconcile with Dr. Franklin’s view

that plaintiff’s condition, and inability to work, was much the

same before and after her knee replacement; even his own records

and reports show that her right knee pain and mobility had

improved and that her more recent issues were with her left wrist

and left knee. Thus, the ALJ was justified in refusing to give

controlling weight to Dr. Franklin’s opinions for these reasons.

Additionally, the Court agrees with the Commissioner that

this case is not on all fours with Rogers. The Court of Appeals

noted, in that case, that the claimant could not even do the

daily activities she described in the way that most people would

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be able to, and that the ALJ had mischaracterized her testimony. 

Here, by contrast, the ALJ appears to have understood and

described plaintiff’s testimony accurately, and she did perform a

number of activities, such as cooking (even while seated),

grocery shopping (again, while seated on a motorized scooter),

going to school functions, and engaging in pool therapy, which

showed the ability to do tasks similar to those needed to perform

a limited range of sedentary work. The fact that there were some

things, such as showering or tying her shoes, which she needed

help with is not necessarily inconsistent with the ALJ’s residual

functional capacity finding, especially given the fact that the

ALJ did not credit her testimony fully. Again, there is support

in the record for the ALJ’s use of the activities plaintiff could

perform as some evidence - even if not conclusive evidence - that

she could also do a limited range of sedentary work with various

restrictions. This is consistent with the controlling law. See,

e.g., Blacha v. Sec’y of HHS, 927 F.2d 228, 231 (6th Cir. 1990)

(“as a matter of law, an ALJ may consider household and social

activities in evaluating complaints of disabling pain”).

Finally, it is clear that the ALJ considered the other

regulatory factors. The ALJ understood the length of the

treating relationship and the fact that Dr. Franklin was an

orthopedic specialist, and took into account the nature of the

tests performed and the treatment provided. On balance, the

Court concludes that the ALJ acted within his discretion in

deciding to discount Dr. Franklin’s opinion to a certain extent,

and finding that plaintiff was slightly more able to do workrelated activities than Dr. Franklin believed.

As far as Ms. Rutan, the nurse-practitioner, is concerned,

plaintiff argues that although a nurse-practitioner is not

considered an “acceptable medical source,” the opinions of such a

health care professional must still be considered. She asserts

that the ALJ did not give these views adequate consideration,

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rejecting them instead simply because Ms. Rutan did not treat

plaintiff for her orthopedic issues.

The Commissioner responds, and the Court agrees, that the

ALJ followed the applicable Social Security Ruling, SSR 06-3p, in

evaluating these opinions. That ruling does direct an ALJ

generally to the considerations set out in §404.1527, but it also

states that the regulations do not directly apply to sources such

as nurse practitioners, and that opinions from such sources “are

important and should be evaluated on key issues such as

impairment severity and functional effects, along with the other

relevant evidence in the file.” It then says that the §404.1527

factors “can” be part of the evaluation process, and recommends

that the ALJ give a statement of reasons for accepting or

rejecting opinions from such sources. 

Here, the ALJ correctly noted that Dr. Franklin, not Ms.

Rutan or the doctors she worked for, treated the most potentially

disabling conditions from which plaintiff suffered - specifically

her wrist and knee problems. Further, the ALJ found that

plaintiff’s diabetes, which is what she usually saw Ms. Rutan

for, was under control, posed no serious restrictions to her

functioning, and was not a severe impairment. Plaintiff does not

challenge this finding. It is true that in many of her treatment

notes, Ms. Rutan describes, to some extent, orthopedic issues,

but that was not the focus of her treatment, and it is certainly

permissible for an ALJ to discount an opinion of any source,

acceptable or not, to the extent that it is based on conditions

for which that source has not provided treatment. It is also

true that Ms. Rutan’s notes do not describe the results of any

objective testing supporting whatever conclusions she drew about

plaintiff’s ability to work. The Court concludes that the ALJ

adequately considered Ms. Rutan’s opinions and explained his

reasons for discounting them, as SSR 06-3p requires, and that he

did not commit any reversible error on this issue. 

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The final issue about medical source opinions relates to Dr.

Smith. The ALJ appears to have accepted Dr. Smith’s 2006 opinion

more or less in its entirety, and almost all of his 2009 opinion,

with the exception of its limiting plaintiff to only seven hours

of combined sitting, standing and walking. As noted above, the

ALJ explained why he rejected that small portion of the report. 

Plaintiff claims, however, that the reasons given by the ALJ for

doing so were impermissibly vague and, in addition, that there is

no direct support in the record for the ultimate finding as to

plaintiff’s residual functional capacity.

The Court does not find the ALJ’s explanation impermissibly

vague; the ALJ clearly stated that Dr. Smith’s own report did not

provide any support for his conclusion that plaintiff was either

not capable of sitting for an extra hour during a work day or

standing or walking for the same amount of time. Further, in his

earlier report, which reflected his views before plaintiff had

her knee replacement surgery, he thought she could stand and walk

for four hours, and the record reflected improvement in her right

knee after that date. Finally, the Court finds that the RFC

which the ALJ arrived at, while not corresponding directly to any

specific medical report, draws elements from the various reports

and also credits some of plaintiff’s testimony, such as her need

to use a cane, which was not directly supported by some of the

medical evidence. It was within the ALJ’s “zone of decision” to

determine this particular residual functional capacity, and each

part of it has some support in the record. That is enough to

insulate it from reversal. See, e.g., Poe v. Comm’r of Social

Security, 342 Fed. Appx. 149, *7 (6th Cir. August 18, 2009)(“The

responsibility for determining a claimant's residual functional

capacity rests with the ALJ, not a physician. See 20 C.F.R. §§

404.1546(c), 416.946(c). Although the ALJ may not substitute his

opinion for that of a physician, he is not required to recite the

medical opinion of a physician verbatim in his residual

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functional capacity finding”). 

The second major issue raised by plaintiff’s statement of

errors deals with the way in which the ALJ judged her

credibility. She argues, first, that the ALJ used an incorrect

legal standard, evaluating her credibility against the ALJ's

residual functional capacity finding rather than against the

entirety of the record. In support of this argument, she cites

to the decision in Bjornson v. Astrue, 671 F.3d 640 (7th Cir.

2012), a decision which is critical of the template used by ALJs

because it implies that the ALJ has made a finding as to residual

functional capacity prior to determining if the claimant's

testimony is credible rather than in the opposite sequence. 

Plaintiff also contends that the ALJ's reliance on testimony

given at the first administrative hearing was error because, as

noted above, the transcript of that hearing is not a part of the

record before the Court. Finally, she asserts that her testimony

at the second hearing was consistent with the medical evidence

and establishes disability.

In response, the Commissioner argues that the ALJ reasonably

determined that plaintiff's testimony, to the extent that it

supported a finding of total disability, did not have to be

accepted at face value. The Commissioner asserts that the ALJ's

discussion of plaintiff's credibility is a "textbook discussion

of Social Security Ruling 96-7p." Commissioner's memorandum,

Doc. 18, at 13. The ALJ, says the Commissioner, took the correct

factors into account, including the plaintiff's testimony, the

medical records, plaintiff's activities of daily living, her

symptoms, and her medication and treatment, and then cited to

reasons for discounting her testimony which are supported by the

record. Those reasons included the fact that the medical records

indicated, contrary to plaintiff's testimony, that the condition

of her right knee improved following surgery, and the fact that

the prior ALJ made a credibility finding which was based in part

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(and, according to the Commissioner, properly) on that ALJ's

observation of plaintiff at the first hearing.

This Court has, in Jones v. Comm’r of Social Security, 2012

WL 5378850 (S.D. Ohio Oct. 30, 2012), and Williams v. Astrue,

2012 WL 4364147 (S.D. Ohio Sept. 24, 2012), acknowledged the

Bjornson decision, but has held that when an ALJ, despite using

the standard template, engages in a complete discussion of the

credibility issue, the Court will simply review that

determination to insure that it is supported by substantial

evidence. Consequently, the Court will review the ALJ's

credibility discussion in light of SSR 96-7p and the entirely of

the record.

 The ALJ noted, first, that plaintiff was not using any kind

of ambulatory aid at the time of the prior hearing, and engaged

in a wide range of daily activities. By the time of the second

hearing, notwithstanding her knee replacement, she said that her

activities were more limited and that she was using ambulatory

aids. Although the testimony from the first hearing is not in

the record, the first administrative decision is, and the second

ALJ did not determine that plaintiff was not truthful at the

first hearing, but rather took that testimony at face value. The

Court does not view this as erroneous. 

Second, the ALJ found that plaintiff’s testimony at the

second hearing concerning her various activities was "not

inconsistent with a sedentary range of work." (Tr. 34). That

finding is an interpretation of the testimony which a reasonable

person could have adopted. Although the Court does not

necessarily agree that the ALJ's discussion is "textbook," and

the ALJ did not engage in a lengthy discussion of the apparent

discrepancies between the medical evidence and plaintiff's

testimony, the Court concludes that the discussion is thorough

enough to demonstrate that the ALJ used an appropriate legal

standard, took into account matters which do have a relationship

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to credibility, and relied on facts which were adequately

supported by the record. The ALJ reasonably concluded that, to

the extent that plaintiff testified to symptoms which would have

prevented her from doing even a reduced ranged of sedentary work,

that testimony was not credible. That is enough to prevent the

Court from overturning the ALJ's credibility finding. See

generally Foreman v. Commissioner of Social Sec., 2012 WL 1106257

(S.D. Ohio March 31, 2012) (Watson, J.), citing Walters v. Comm'r

of Social Security, 127 F.3d 525, 531 (6th Cir. 1997); Felisky v.

Bowen, 35 F.3d 1027, 1036 (6th Cir. 1994). 

 VII. Recommended Decision

Based on the above discussion, it is recommended that the

plaintiff’s statement of errors be overruled and that judgment be

entered in favor of the defendant Commissioner of Social

Security.

VIII. Procedure on Objections

If any party objects to this Report and Recommendation,

that party may, within fourteen (14) days of the date of this

Report, file and serve on all parties written objections to

those specific proposed findings or recommendations to which

objection is made, together with supporting authority for the

objection(s). A judge of this Court shall make a de novo

determination of those portions of the report or specified

proposed findings or recommendations to which objection is

made. Upon proper objections, a judge of this Court may

accept, reject, or modify, in whole or in part, the findings

or recommendations made herein, may receive further evidence

or may recommit this matter to the magistrate judge with

instructions. 28 U.S.C. §636(b)(1).

 The parties are specifically advised that failure to

object to the Report and Recommendation will result in a

waiver of the right to have the district judge review the

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Report and Recommendation de novo, and also operates as a

waiver of the right to appeal the decision of the District

Court adopting the Report and Recommendation. See Thomas v.

Arn, 474 U.S. 140 (1985); United States v. Walters, 638 F.2d

947 (6th Cir. 1981).

/s/ Terence P. Kemp 

United States Magistrate Judge

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